Darothi Mukherjee vs Sri Ajoy Kumar Ghosh

Bhattacharya, J.—The instant first miscellaneous appeal is directed against an order dated 6th August, 2016 (later) passed by the learned Civil Judge, Senior Division, 1st Court, Howrah in Title Suit No. 352 of 2016 at instance of the plaintiff/appellant.

The instant appeal was admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure on 29th September, 2016. After the appeal was admitted we, on an application for interim injunction filed by the appellant passed an ad interim order of injunction directing the parties to maintain status quo as regards transfer and/or creating any third party interest and/or possession in the suit property as on that day till 15th November, 2016 or until further order whichever is earlier.

The respondents appear in this appeal and have filed an application for vacating the interim order passed by this Court. At the time when we were considering the appellant''s prayer for extension of interim order, we are invited by the learned Counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this appeal. We are informed by the learned Counsel appearing for the parties that all relevant papers which are necessary for disposal of this appeal, are annexed to the application for interim injunction.

Considering such submission made by the learned Counsel appearing for the parties, we have decided to hear out the appeal on merit.

Let us now consider the merit of the instant appeal in the facts of the present ease.

The plaintiff filed a suit for specific performance of contract. The plaintiff claims that he entered into an agreement for sale with the defendant Nos. 1 to 4 on 8th July, 2016 for purchasing the suit property for a consideration of Rs, 1,05,00,000/- (Rupees One Crore and Five Lacs only). It is alleged that at the time of entering into the agreement for sale, the plaintiff paid a sum of Rs. 65,00,000/- (Rupees Sixty Five Lacs only) towards earnest money. It is also alleged by the plaintiff that the parties agreed that the sale will be completed on tender of the balance consideration money amounting to Rs. 40,00,000/- (Rupees Forty Lacs only) by the plaintiff to his vendor viz. the defendants/respondents herein within 15 days from the date of execution of the agreement.

It is further alleged that though the balance consideration money was tendered to the defendants but the defendants neither accepted the same nor executed any sale deed in favour of the plaintiff. As such, by the advocate''s letter dated 1st August, 2016, the defendants were called upon to execute the deed of conveyance in favour of the plaintiff on acceptance of the balance consideration money from the plaintiff.

Since the defendants did not accede to such request of the plaintiff, the instant suit was filed seeking specific performance of contract and in such a suit, the plaintiff has filed an application for temporary injunction for restraining the defendants from selling, transferring, alienating, encumbering and/or creating any third party interest in respect of the schedule ''A'' property mentioned in the plaint and/or from changing the nature and character thereof till the disposal of the plaintiffs application for temporary injunction. An ad interim relief in similar form was also prayed by the plaintiff.

The learned Trial Judge refused to pass any ad interim order of injunction in favour of the plaintiff by the impugned order. Hence, the instant appeal was filed.

We have considered the pleading''s made out by the plaintiff in the plaint as well as in the injunction application. The agreement for sale which was allegedly entered into between the parties, has also annexed to the injunction application. The agreement was typed out on ten rupee Non-Judicial Stamp Paper.

Thus, we find that the agreement itself was typed out on insufficient Stamp Paper. Such an agreement for sale parse cannot be enforced unless the document is impounded. Impounding can be done only when the original agreement is tendered into evidence

As such, we cannot consider the plaintiffs prayer for injunction at this stage where we find that the agreement was not transcribed on sufficient Stamp Paper.

That apart, we find that the plaintiff claims that he has paid a sum of Rs. 65,00,000/- (Rupees Sixty Five Lacs only) on account of earnest money in cash. The agreement does not contain any receipt clause. No separate receipt is also forth-coming from the side of the plaintiff showing payment of Rs. 65,00,000/- (Rupees Sixty Five Lacs only) to the defendants; even the agreement does not contain any description of the notes by which such payment was tendered to the plaintiff.

Under such circumstances, we are unable to hold that a prima facie case has been made out by the plaintiff for going for trial.

Accordingly, we hold that the learned Trial Judge did not commit any illegality by refusing to pass any ad interim order of injunction in such a suit.

We thus, dismiss the appeal and confirm the findings of the learned trial Court.

Since the defendants have already entered appearance in this appeal, we direct the defendants to appear in the suit and file their affidavit-in-opposition to the plaintiff�s application for temporary injunction within three weeks from date, reply if any, be filed by the appellant/ petitioner within a week thereafter.

We request the learned Trial Judge to dispose of the plaintiff''s application for temporary injunction as early as possible preferably by the end of February, 2017.

It is made clear that whatever observations we have made herein above are all tentative observations made by this Court only for the purpose for disposal of the appeal which is directed against an order passed by the learned Trial Judge refusing to grant dd interim injunction.

As such, the learned Trial Judge is free to decide the plaintiff�s application for temporary injunction after exchange of affidavits between the parties on its own merit and without being influenced by any of the observations made herein above.

Both the appeal and the applications filed by the respective parties are thus, disposed of.

Let the affidavit-in-opposition filed by the appellant in Court today, be kept with the record.

Das, J.—I agree.